in Re Greg Abbott in His Official Capacity as Governor of the State of Texas Jaime Masters in Her Official Capacity as Commissioner of the Department of Family and Protective Services And the Texas Department of Family and Protective Services

Supreme Court of Texas
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No. 22-0229
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In re Greg Abbott in His Official Capacity as Governor of the
State of Texas; Jaime Masters in Her Official Capacity as
Commissioner of the Department of Family and Protective
Services; and the Texas Department of Family and Protective
Services,
Relators
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On Petition for Writ of Mandamus
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JUSTICE BLACKLOCK, joined by JUSTICE BOYD and JUSTICE
DEVINE, concurring in part and dissenting in part.

I agree with the Court that Rule 29.3 does not authorize the court
of appeals to afford statewide relief to non-parties. The remaining
question is whether the State is entitled to mandamus relief from the
court of appeals’ order with respect to the plaintiffs. The Court denies
that portion of the State’s petition except as to the Governor, but I would
grant further relief.
This mandamus petition arises from the court of appeals’ Rule
29.3 order reinstating the district court’s temporary injunction against
the State. The well-established temporary-injunction standard applied
by the district court requires the party seeking the injunction to
establish: “(1) a cause of action against the defendant; (2) a probable
right to the relief sought; and (3) a probable, imminent, and irreparable
injury in the interim.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
(Tex. 2002). We have not previously articulated the standard a court of
appeals asked to reinstate a temporary injunction using Rule 29.3
should apply. The Court’s decision today does not comment on that
question.
In my view, it would make little sense to require the Rule 29.3
movant under these circumstances to establish any more or any less
than what was initially required to obtain the injunction in the district
court. Thus, in determining whether to issue its own order effectively
reinstating a superseded temporary injunction, the court of appeals
should have considered de novo the same factors considered by the
district court. Consequently, the question for this Court, on mandamus,
is whether the court of appeals abused its discretion by concluding that
the plaintiffs had made a sufficient showing under the traditional
temporary-injunction factors.
To begin, I agree with the Court that the State is not entitled to
mandamus relief as to part (1) of the court of appeals’ order, which
prohibits the defendants from “taking any actions against Plaintiffs
based on the Governor’s directive and DFPS rule, both issued February
22, 2022, as well as Attorney General Paxton’s Opinion No.
KP-0401 . . . .” As the Court holds, neither the Governor’s letter nor the
Attorney General Opinion changed the legal landscape in a way that
altered DFPS’s discretion to make investigatory decisions regarding
alleged child abuse. Nor do DFPS’s subsequent media statements or
internal directions to its staff in reliance on the Governor’s letter and

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the Attorney General Opinion bind DFPS in the future exercise of its
investigatory discretion or formally alter the legal obligations of parents,
doctors, or anyone else. I understand part (1) of the order to simply
reinforce the reality that there has been no change in law that, of its
own force, authorizes any action by DFPS against the plaintiffs.
The question remains, however, whether part (2) of the order can
stand as applied to the plaintiffs. Part (2) prohibits DFPS from even
investigating the possibility of harm to the plaintiffs’ child. Although
none of the defendants’ challenged statements provide an independent
legal basis for such an investigation, the real crux of the matter is
whether, under pre-existing law, DFPS had the background authority,
grounded in the Family Code, to investigate whether gender-dysphoria
treatment may constitute child abuse in particular cases and to go to
court to seek orders on that basis. We should not resolve that question
at this time. But, at this stage, we should ask whether the plaintiffs
have established a probable right to relief on their claim that DFPS
cannot even so much as look into the plaintiffs’ medical decisions in this
regard without first undertaking notice-and-comment rulemaking.
The plaintiffs have not made the required showing. They cite no
case in which an injunction has been obtained prohibiting the executive
branch from exercising its well-established prerogative to investigate
whether the law has been broken. As the Court rightly observes, if
DFPS concludes on the basis of an investigation that further action is
warranted, that action cannot take place without court authorization.
Until then, the courts’ normal role in this process is not to tell DFPS
what it can and cannot investigate. Instead, the courts’ role is to decide

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whether DFPS may take action based on its investigation. The court of
appeals’ order, however, would prohibit DFPS from even beginning an
investigation to determine whether cause for concern meriting the
pursuit of court orders might exist. In other words, the injunction
amounts to one court ordering DFPS not even to look into whether it
should seek orders from another court. We are pointed to no precedent
for this kind of preemptive short-circuiting of the normal relationship
between the investigatory power of the executive branch and the judicial
power of the courts.1
The plaintiffs, their experts, and their supporting amici are firmly
convinced that the disputed treatments are fully reversible and
completely justified. The Attorney General and the Governor
vehemently disagree. All involved are entitled to their opinions, but the
Legislature has assigned to DFPS—not to the Governor or to the
plaintiffs’ experts and amici—the authority to investigate such matters
on behalf of the State. In my view, an injunction preemptively
prohibiting the executive branch from even investigating the possibility
that injury to a child may result from the disputed treatments is likely
beyond the proper scope of the judicial power. The court of appeals’

1 Like the Court, I would not foreclose the possibility that such an
“injunction against investigation” could ever be available. If, for instance,
DFPS opened an investigation into a parent’s religious instruction of his
children, the mere investigation could chill the exercise of rights enumerated
in the U.S. and Texas Constitutions. See TEX. CONST. art. I, § 6 (“No human
authority ought, in any case whatever, to control or interfere with the rights of
conscience in matters of religion.”) (emphasis added).

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injunction prohibiting any investigation of these matters by DFPS was
an abuse of discretion, including as to the plaintiffs.2
For these reasons, I respectfully dissent from Part III of the
Court’s decision.

James D. Blacklock
Justice

OPINION DELIVERED: May 13, 2022

2 The State makes no argument that parts (3) or (4) of the order are
invalid as applied to the plaintiffs, so I agree with the Court’s decision to deny
relief on those portions of the order as to the plaintiffs.

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